Here is the executive summary of our comment, which we distributed yesterday to Tufts’ Task Force on Freedom of Expression and other members of the Tufts community.

EXECUTIVE SUMMARY

The draft Declaration on Freedom of Expression and Inquiry at Tufts University fails to inspire students and faculty members to value freedom of expression on campus. While the first two paragraphs discuss the importance of free inquiry at Tufts, the remainder of the document is dedicated to exceptions to free expression and the university’s role in regulating speech on its campus in order to protect values such as "dignity," "respect," "tolerance," and "civil dialogue." Taken as a whole, the draft Declaration sends the message that while Tufts would like to have free expression and inquiry on its campus, anyone wanting to engage in such activities will be subject to a number of vague and confusing regulations.

Rather than being a broad statement about the value of free inquiry on campus, the draft Declaration appears squeamish about First Amendment principles. The draft Declaration would subject Tufts community members to much more stringent regulations on expression than would ever be permissible on public campuses. It sends the message that the university is no longer prepared to cope with the challenges that come with unfettered expression, and it raises the question of why Tufts believes that it cannot succeed in its mission while meeting the same standards for freedom of expression by which public universities must abide.

Several specific provisions of the draft Declaration are responsible for the weakness of the document as a whole. First, the draft Declaration’s statement that education "requires an environment of respect, tolerance, and civil dialogue," as well as its "obligation" to protect the "dignity" of others, undermine any serious commitment to freedom of speech in the document. Certainly, a college may say that it values "respect, tolerance, and civil dialogue" and, consistent with freedom of expression, Tufts may promote expression that "respect[s] the dignity of others." However, stating that Tufts, and indeed education itself, requires respect, tolerance, and civility creates an exception that swallows the rule of free speech, for any enforcement mechanism for these rules would require eternally impartial and infallible arbiters of what is respectful, dignified, civil, and so on. As countless philosophers, thinkers, and scholars have pointed out, no person or institution is qualified to perform such a task.

Second, the statement’s assertion that the law prevents speech that may "provoke another person to violence" dangerously invokes the discredited "fighting words" doctrine which has been used by colleges for decades as a justification for censorship. True incitement is not protected by the law, but language that simply disturbs others enough that they threaten to cause a campus disturbance may not, consistent with freedom of expression, be proscribed or punished. To permit the possible reactions of others to guide policy amounts to granting a "heckler’s veto" to the most disruptive persons on campus, enabling the most violent persons on campus to decide what expression will be permitted.

Finally, while a university may ban "harassment" and "intimidation," the university should be very wary of these terms, for they have been consistently abused over the past several decades by campuses to ban or punish speech that would be clearly protected by the First Amendment. Indeed, this problem is not merely theoretical at Tufts; last year, a student committee found a student publication guilty of "racial harassment" for speech that could not be considered harassing by any legal definition. The draft Declaration makes no effort to remind policymakers at Tufts that there is a key difference between, on the one hand, objectively offensive speech that is severe and pervasive enough to interfere with someone’s education and, on the other hand, the kind of vigorous debate (including harsh parody and satire) that may well hurt feelings and even cause the kind of sadness and shame that leads one to introspection and the free changing of one’s mind.

Given these fatal flaws, flaws which transform a policy intended to promote freedom of speech at Tufts into a policy that may endanger it, Tufts should carefully review and redraft the Declaration. FIRE strongly encourages Tufts to use Yale’s 1974 Woodward Report as a guide to future drafts.